1 2025:CGHC:12403 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 300 of 2015 1 - Thanuram S/o Rama Prasad Dheemar Aged About 40 Years R/o Rambag, Ward- Dhamtari, Tehsil And District- Dhamtari, Chhattisgarh, Chhattisgarh ... Appellant versus 1 - Ashok Kumar S/o Late Parasram Tiwari Aged About 35 Years R/o Vindyavasini, Ward Dhamtari, Tehsil And District- Dhamtari, Chhattisgarh, Chhattisgarh 2 - Keshav Nai S/o Shiv Narayan Kaushik Aged About 40 Years R/o Vindyavasini, Ward Dhamtari, Tehsil And District- Dhamtari, Chhattisarh 3 - State Of Chhattisgarh Through The Collector, Dhamtari, Chhattisgarh 4 - Tulsabai Wd/o Late Parasram Tiwari Aged About 50 Years R/o Mahima Sagar Ward, Mahima Sagar Talab, Dhamtari, Tehsil And District- Dhamtari, Chhattisgarh 5 - Shrimati Usha Bai W/o Ramesh Aged About 40 Years R/o Mahima Sagar Ward, Mahima Sagar Talab, Dhamtari, Tehsil And District- Dhamtari, Chhattisgarh PRIYANKA VERMA Digitally signed by PRIYANKA VERMA Date: 2025.03.18 10:52:10 +0530 2 6 - Shrimati Anita Bai W/o Mahadev Aged About 35 Years R/o Mahima Sagar Ward, Mahima Sagar Talab, Dhamtari, Tehsil And District- Dhamtari, Chhattisgarh 7 - Shrimati Sunita Bai W/o Ramesh Sonkar Aged About 33 Years R/o Mahima Sagar Ward, Mahima Sagar Talab, Dhamtari, Tehsil And District- Dhamtari, Chhattisgarh, District : Dhamtari, Chhattisgarh ... Respondents For Appellant : Mr. Shobhit Koshta, Advocate For Respondents No. 1, 2 & 4 to 7 : Ms. Neelu Singh, Advocate appears on behalf of Mr. Sunil Verma, Advocate For State : Mr. S.K Puria, PL Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board 12/03/2025 1. This Second Appeal has been preferred against the judgment and decree dated 20.04.2015 passed by the Additional District Judge, Dhamtari in Civil Appeal No.29A/2014, whereby the judgment and decree passed by the 1st Civil Judge, Class I, Dhamtari dated 19.07.2013 in Civil Suit No.72A/2011, by which the Suit was dismissed, was reversed. By the impugned judgment the appeal was allowed and the decree in favour of the plaintiff was granted to the effect that the plaintiff and respondents No.4 to 7 are title holder of the subject Nazul land bearing Khasra No.1209/04(d) ad measuring area 65 square meter. It was further directed that the appellant/defendant No.1 after removing the superstructure (malma) shall hand over the vacated possession in favour 3 of plaintiff and respondents No.4 to 7. Permanent injunction was also granted against them. 2. On 26.10.2015, this Second Appeal was admitted on the following substantial question of law:- “1. Whether the Court below was justified in holding that Will Deed (Ex.D-3) is not proved in view of the evidence of Thanuram (D.W.1), Shivkumar Netam (D.W.2) and Dharam Singh (D.W.3)?” 3. Further vide order dated 31.07.2024 following additional substantial question of law, which is numbered as 2 was also framed:- “2. Whether, since the plaintiffs had withdrawn the first Civil Suit bearing No.59A/2001, therefore, instant second Civil Suit is not maintainable because of the bar contained in the Order 23 Rule 1 (4) of CPC?” 4. For the sake of convenience, the parties are addressed as per the nomenclature given before the trial Court. 5. Learned counsel for the appellant submits that respondent No.1/plaintiff had earlier filed a Civil Suit bearing Khasra No.59A/2001. During the pendency of said Suit, an application under Order 23 Rule 1(3) of the CPC (Ex.P/24) was preferred and the same was allowed vide order dated 18.03.2004 (Ex.P/22). He submits that as no permission has been granted while disposing of the said application, the subsequent instant 4 Suit which has been filed on 24.03.2004, is barred under Order 23 Rule 1(4)(b) of the CPC. 6. In this regard, learned counsel for the appellant places reliance in the matter of University of Agricultural Sciences vs. Saroj Gupta, (2021) 16 SCC 768. He would submit that SDO (Dhamtari) granted patta (Ex.P/23) of the subject land i.e. Plot No.1209/04(d) situated at Danitola, Ward Dhamtari, ad measuring area 10.7 x 6.50= 65 square meters, mentioning the boundaries in the north house of Chote Khan and in the south house of Uma Khan, in the east government land and vide order dated 14.07.1990 passed in Revenue Case No.1A20 (v) 1899-90. He would further submit that Parasram died on 07.12.2002 and before his death, he sold the subject property (Ex.D/20) in favour of the appellant/defendant No.1 herein by way of an unregistered sale deed on 04.04.2001 and late Parasram had also executed a Will (Ex.D/3) on 29.11.2002 in favour of the appellant, which has been duly proved by examining attesting witnesses, namely Shivkumar Netam (DW-2) and Dharam Singh Sahu (DW-3). He would further submit that the trial Court has rightly dismissed the Suit but the 1st Appellate Court erroneously reversed the well-merited finding of the trial Court only on the ground that Will (Ex.D/3) has not been duly proved. He would submit that the trial Court has observed that the subject land is a Nazul land and the same cannot be sold in violation of the terms and conditions of the patta (Ex.P/23). He fairly submits that even under Section 165(7- b) of the CG Land Revenue Code, a leaseholder from the State could not 5 alienate the land without permission from the Collector and for the sake of brevity, the said provisions read thus:- “Section 165 (7-b)- Notwithstanding anything contained in sub-section (1), a person who holds land from the State Government or a person who holds land in Bhoomiswami rights under sub-section (3) of Section 158 or whom right to occupy land is granted by the State Government or the Collector as a Government lessee and who subsequently becomes Bhoomiswami of such land, shall not transfer such land without the permission of a revenue officer, not below the rank of a Collector, given for reasons to be recorded to be recorded in writing.” 7. He submits that the trial Court has observed that in violation of the condition, the lease (Ex.P/23) is deemed to be cancelled. He would submit that as the trial Court has deemed the cancellation of the lease (Ex.P/23), so the legal heirs of Parasram did not have any title. Therefore, the learned Appellate Court erroneously declared the title in their favour. He would further submit that even the deceased Parasram has handed over possession in favour of the appellant herein by way of an unregistered sale deed (Ex.D/20) on 04.04.2001, so the possession of the appellant is continued as the original lessor has lost their title. So, the subject land has reached to the State and the State is the owner of the subject land. In such circumstances, since the appellant is in possession of the subject property, his possession deserves to be protected on the basis of the possessory title and for such a proposition, learned counsel places reliance in the matter of Nair Service Society Ltd. vs. K.C. 6 Alexander And Others, AIR 1968 SC 1165 and referred Para 17 which reads thus:- “17.In our judgment this involves an incorrect approach to our problem. To express our meaning we may begin by reading 1907 AC 73 to discover if the principle that possession is good against all but the true owner has in any way been departed from 1907 AC 73 reaffirmed the principle by stating quite clearly : "It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title." Therefore, the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The action of the Society was a violent invasion of his possession and in the law as it stands in India the plaintiff could maintain a possessor suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised. As this was a suit of latter kind title could be examined. But whose title? Admittedly neither side could establish title. The plaintiff at least pleaded the statute of Limitation and asserted that he had perfected his title by adverse possession. But as he did not join the State in his suit to get a declaration, he may be said to have not rested his case on an acquired title. His suit was thus limited to recovering possession from one who had trespassed against him. The enquiry, thus narrows to this : did the Society have any title in 7 itself, was it acting under authority express or implied of the true owner or was it just pleading a title in a third party? To the first two questions we find no difficulty in furnishing an answer. It is clearly in the negative. So the only question is whether the defendant could plead that the title was in the State? Since in every such case between trespassers the title must be outstanding in a third party a defendant will be placed in a position of dominance. He has only to evict the prior trespasser and sit pretty pleading that the title is in someone else. As Erle, J. put it in Burling' v. Read, (1848) 11 Q.B. 904 'parties might imagine that they acquired- some right by merely intruding upon land in the night, running up a hut and occupying it before morning'. This will be subversive of the fundamental. doctrine which was accepted always and was reaffirmed in 1907 AC 73. The law does not therefore, countenance the doctrine of 'findings keepings'.” 8. Likewise, in the matter of Meenakshi Jain vs. State of M.P and Others, 1997 SCC OnLine MP 82, it has been observed that the breach of condition of the lease only makes the lease voidable and in that case, possession was protected. He submits that as the plaintiff has filed the Suit for title and the trial Court has observed that the plaintiff has lost the title as there is a deemed cancellation of the lease and against the said finding, the plaintiff has not preferred any Appeal and the plaintiff has failed to prove the title on the subject land, so no relief could be granted in his favour. Learned counsel places reliance in the matter of Union of India And Others vs. Vasavi Cooperative Housing Society Limited 8 And Others, (2014) 2 SCC 269, and refers paras 15, 17, 18 & 19 which read as under:- “15.It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.” “17.At the outset, let us examine the legal position with regard to whom the burden of proof lies in a suit for declaration of title and possession. This Court in M o ran Mar Basselios Catholicos v. Thukalan Paulo Avira reported in AIR 1959 SC 31 observed that “ (AIR p37, para 20) “20.in a suit [for declaration] if the plaintiffs are to succeed, they must do so on the strength of their own title.” “18.In Nagar Palika, Jind v. Jagat Singh, (1995) 3 SCC 426, this Court held as under: “the onus to prove title to the property in question was on the plaintiff-respondent….. In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The court is bound to enquire or investigate that question first before going into any other question that may arise in a suit.” 9 “19.The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against (sic them), in the absence of establishment of the plaintiff’s own title, plaintiff must be non- suited.” 9. Lastly, he submits that as the appellant does not have a better title than the defendant, the decree passed by the 1st Appellate Court deserves to be set aside and the decree accordingly be modified. 10.On the other hand, learned counsel for respondents No.1, 2 & 4 to 7 supported the impugned judgment and decree passed by the Appellate Court. 11.Learned counsel for respondent No. 3/State submits that the State is a formal party and would submit that in terms of Section 165 (7-b) of the CG Land Revenue Code, if there is any violation of condition of the lease, the State has only the authority to cancel the lease. He would submit that till so far the said lease has not yet been cancelled. 12.Heard learned counsel for the parties and perused the documents annexed with the Appeal carefully. 13.Indisputably, a lease was granted for the subject land on 14.07.1990 vide Ex.P/23 in favour of father of the plaintiff, namely Parasram and it is the 10 case of the appellant/defendant No.1 herein that he has purchased the subject land by way of an unregistered sale deed dated 04.04.2001. 14.Admittedly, no permission was sought before the purchase from the Collector so there is a violation of Section 165 (7-b) of the CG Land Revenue Code. It is a trite law that when any condition has been violated of granting the lease, the lessor who is the State, has only the right in breach of the condition to cancel the lease. From the evidence available on record, it is clear that no such order has been passed by the State and the lease continued in favour of Parasram (father of the plaintiff) up till his death, who died on 07.12.2002; after his death, his legal heirs became the lessee of the subject property. 15.Appellant/defendant No.1 has also taken a plea that late Parasram has also executed a Will on 29.11.2002 (Ex.D/3). Learned 1st Appellate Court has assigned the cogent reason in para 27 of the impugned judgment that there are material contradictions in the statement of attesting witnesses, Shivkumar Netam (DW-2) and Dharam Singh Sahu (DW-3) about the manner of execution of the questioned Will (Ex.D/3). So taking into consideration the aforesaid contradictions, the Appellate Court has rightly reached to the conclusion that the Will has not been duly proved. 16.Even otherwise, this Court put a specific query that when there is a clear statutory bar under Section 165(b) of the CG Land Revenue Code, unless a permission is granted by the Revenue Officer not below the rank of a Collector, alienation could not be made. So in absence of any such law, no other mode is permissible for alienation of the subject land. 11 17.In view of the aforesaid discussion, this Court is of the view that since the State has not yet cancelled the lease, the valid title remained in favour of the legal heirs of Parasram. Thus, the learned Appellate Court had rightly declared the title holder on the basis of said lease deed (Ex.P/23) for the plaintiff along with respondents No.4 to 7, who are the legal heirs of deceased Parasram. So the submission put forth by the learned counsel for the appellant that the plaintiff has not proved the title has no basis. 18.There is no dispute about the proposition held in the matter of Union of India And Others (supra), whereby it has been observed that the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff. 19.In the case at hand, the plaintiff has established his title on the basis of lease (Ex.P/23) and the legal heirs of Parasram are the rightful owner of the subject property. So the judgment in the matter of Nair Service Society Ltd. (supra) relied by learned counsel for the appellant is also not applicable to the facts and circumstances of the case herein, as in the present case, rightful owner has come forward to accept his title by due process of law. Similarly, the judgment in the matter of Meenakshi Jain (supra) is also distinguishable on fact as in that case a registered sale deed has been executed in favour of the purchaser of the lease. 20.With regard to the legal submission put forth that the earlier Civil Suit No. 59A/2001 has been withdrawn without any permission on 18.03.2004 (Ex.P/22) and no permission was granted by the trial Court 12 and therefore, the subsequent Civil Suit No.72A/2011, which was filed on 24.03.2004, is hit by Order 23 Rule 1(4) of the CPC, after going through the record, this Court finds that in Civil Suit No.59A/2001, respondent No.1/plaintiff had moved an application under Order 23 Rule 1(3) of the CPC (Ex.P/24) by making a specific averment that the subject property was acquired by the father of the plaintiff on lease by the State Government and the transfer of the said lease was not legal. It has been further averred that after the death of the lessee, the legal heir has right to challenge any such alienation and by the said application, permission was sought to file a fresh Suit before the competent Court. Although the said application was opposed by the appellant, after due consideration, the learned trial Court i.e. 2nd Civil Judge, Class II, Dhamtari, allowed the application and permission was granted to withdraw the Suit. 21.In the judgment, which has been relied by counsel for the appellant in the matter of University of Agricultural Sciences (supra), this Court could not find that any such application was moved and at para 5 of the said judgment, it was mentioned that the Suit itself was withdrawn, without reserving any liberty to institute fresh Suit. But in the instant case, with an intention to file a fresh Suit, an application was preferred and even after the objection raised by the appellant/defendant No.1 herein, the Court has granted permission for withdrawal of the earlier Suit. Meaning thereby, a permission was granted in terms of Order 23 Rule(1)(3)(b) of the CPC. Therefore, the bar, which stipulates for filing a fresh Suit in terms of Order 23 Rule 1 (4) of the CPC, does not apply in the facts situation of the present case. 13 22.For the foregoing, this Court does not find any infirmity and illegality in the findings recorded by the learned Appellate Court. So far as substantial question of law No.1 is concerned, it is held that the Appellate Court has rightly disbelieved the Will (Ex.D/3) and even otherwise, no alienation is permissible in violation of the statutory bar under Section 165 (7-b) of the CG Land Revenue Code, for alienation of the subject property by way of Will in violation of the statutory terms. As regards substantial question of law No.2, it is held that the subsequent Suit is maintainable and the bar under Order 23 Rule 1(4) of the CPC does not attract. 23.Both the substantial questions of law are answered accordingly. 24.In consequence, this Appeal deserves to be and is hereby dismissed upholding the judgment and decree passed by the 1st Appellate Court. 25.No order as to cost(s). 26.A decree be drawn accordingly. Sd/- (Deepak Kumar Tiwari) Judge Priyanka